The Supreme Court heard a case on February 25th about a Muslim teenage girl who was not hired by Abercrombie “because she wears a hijab,” or headscarf, according to the Equal Employment Opportunity Commission’s allegations. Headscarfs do not comply with Abercrombie’s “Look Policy.” At Abercrombie, the sales-floor employees are “referred to as ‘Model[s]’” and “must dress in clothing that is consistent with the kinds of clothing that Abercrombie sells in its stores.”[1] Part of this policy prohibits sales-floor employees from wearing black clothing and “caps” (headscarfs are not specified in the policy).
The EEOC won this freedom of religion case in the United States District Court for the Northern District of Oklahoma, but the United States Court of Appeals for the Tenth Circuit decided in favor of Abercrombie. Now, it’s up to the Supreme Court to decide the following issue: “Can an employer be held liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant based on a religious observance or practice if the employer did not have direct knowledge that a religious accommodation was required?”[2]
So, what exactly does Title VII of the Civil Rights Act of 1964 say? Here’s a snippet:
“Title VII of the Civil Rights of Act of 1964 makes it ‘an unlawful employment practice for an employer…to discharge any individual, or otherwise to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual’s…religion.’”
“‘Religion’ is defined to include those ‘aspects of religious observance and practice’ that an employer is able to ‘reasonably accommodate…without undue hardship on the conduct of the employer’s business.’”
“As a result, an employer has an obligation ‘to reasonably accommodate the religious practices of an employee or prospective employee, unless the employer demonstrates that accommodation would result in undue hardship on the conduct of its business.’”
Here are the facts of the case:
Before the job interview, Samantha Elauf, the job applicant, asked her friend, Farisa Sepahvand, who works at Abercrombie, whether or not Ms. Elauf could wear a headscarf at Abercrombie if she were an employee. Her friend asked an assistant manager, who said that would be fine “especially if she didn’t wear a headscarf that was black.”[3]
Ms. Elauf wore a black headscarf to her Abercrombie interview. Applicants do not have to comply with the “Look Policy” at their interviews, according to Abercrombie’s policy. An assistant manager, Heather Cooke, interviewed Ms. Elauf and did not ask her about the headscarf. Ms. Elauf also never mentioned in the interview that she wears the headscarf for religious reasons.
Ms. Elauf’s interview score was high enough for her to get the job. Ms. Cooke “assumed that [Ms. Elauf] was Muslim” and, after the interview, asked Abercrombie’s district manager, Randall Johnson, about her concern that Ms. Elauf’s headscarf does not comply with the “Look Policy.” The facts are disputed whether or not Ms. Cooke mentioned to Mr. Johnson that Ms. Elauf wore the headscarf because of her religion. According to Ms. Cooke, Mr. Johnson told her “to change Ms. Elauf’s interview score” so that “she would not be recommended for hire.” Ms. Cooke never contacted Ms. Elauf about the job. Ms. Elauf found out that she was not hired through Ms. Sepahvand.
The Supreme Court justices seemed to lean toward the EEOC’s argument during the hearing. For example, Justice Samuel A. Alito asked a thought-provoking hypothetical to Abercrombie’s attorney, Shay Dvoretzky, whether or not Abercrombie would hire a person that wears a black blouse to an interview, “which is against the Abercrombie rules”…“on the assumption that this person likes black so much this person is going to wear black every single day?[4]” Mr. Dvoretzky responded: “I don’t think Abercrombie needs to make that assumption about what the person will do later in order to make a judgment based on the person’s appearance at the interview.”[5]
The question is one of assumption. As Justice Alito noted, “Maybe she’s just having a bad hair day so she comes in with a headscarf, but she doesn’t have any religious reason for doing it.”[6] If the employer assumes that an applicant will need a religious accommodation, is an assumption enough information? Or does the applicant need to tell the employer about his or her religious needs? Moreover, if the employer thinks that the applicant will not be okay with wearing his or her garb (i.e. a headscarf) during work, should the employer ask the applicant during an interview? Or, is that assumption treating “people differently based on their religion”? [7]
The Supreme Court will release most likely release their decision for this case this summer.
[1] http://sblog.s3.amazonaws.com/wp-content/uploads/2014/09/10th-cir-11-5110.pdf
[2] http://gwplsa.blogspot.com/2014/12/elonis-v-united-states-first-supreme.html
[3] http://sblog.s3.amazonaws.com/wp-content/uploads/2014/09/10th-cir-11-5110.pdf
[4] http://www.oyez.org/cases/2010-2019/2014/2014_14_86
[5] Ibid.
[6] Ibid.
[7] Ibid.